RailPlus Australasia Pty Ltd

[2014] FWCA 235

[2014] FWCA 235

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 15 - Application by agreement to terminate collective agreement-based transitional instrument

RailPlus Australasia Pty Ltd
(AG2013/11926)

RAIL PLUS AUSTRALASIA PTY LTD CERTIFIED AGREEMENT [2005]

Tourism industry
COMMISSIONER ROE	MELBOURNE, 9 JANUARY 2014

Application for termination of the Rail Plus Australasia Pty Ltd Certified Agreement [2005].

[1] An application has been made pursuant to Item 15 Sch.3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to terminate the Rail Plus Australasia Pty Ltd Certified Agreement [2005] (the Agreement). The nominal expiry date of the Agreement was 25 July 2008. Notwithstanding that the Application could have been made under Section 225, the employer has made the Application under Section 222. An Application can be made under Section 222 regardless of the nominal expiry date of the Agreement.

[2] I must approve the termination if I am satisfied that each of the requirements of Section 223 of the Fair Work Act 2009 (the Act) are met. Section 223 provides as follows:

“223 When FWA must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWA must approve the termination if:

(a) FWA is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWA is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWA is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWA considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application states that the termination of the Agreement was agreed to on 6 December 2013. Pursuant to Section 222(3)(a) the application was made within 14 days after the termination was agreed to.

[4] A statutory declaration of Mr Sasha Craig, Operations Manager of Rail Plus Australasia Pty Ltd was provided with the application. Mr Craig’s declaration states that each employee covered by the Agreement was sent an email on 9 August 2013 asking employees to email him that morning if they agree or disagree with the proposal to terminate the Agreement. Mr Craig states that a majority of employees voted to terminate the Agreement.

[5] I accept the evidence in the statutory declaration of Mr Craig and the attached documentation that employees were advised of the time and place at which the vote would occur and the voting method to be used (Section 220(1) and 2(a) and 3 of the Act), and that the majority voted in favour of the termination (Section 221 of the Act).

[6] On 17 December 2013 my Associate wrote to Mr Craig raising a concern that there may be grounds for believing either that the employees were not given a reasonable opportunity to decide (Section 220(2)(b) of the Act) and/or that there are reasonable grounds for believing that employees have not agreed to the termination (Section 223(c) of the Act).

[7] The letter stated:

“The basis for the concern is that the letter accompanying the ballot states that if the Agreement is terminated the terms and conditions will be derived from the Award and the NES and “you will continue to be provided with the more generous terms and conditions contained in the unregistered... 2013 Agreement.” The letter also says that: “you will note that the 2013 Agreement contains a number of terms and conditions which are far more beneficial than those contained in the NES, Award and 2005 Agreement. As such if you wish to secure higher wages and conditions please participate in the ballot and send me your statement of agreement to terminate the 2005 Agreement.”

The ballot was conducted by an email being sent to the Operations Manager who signed the letter and the email was required to include the name of the employee.

Therefore any employee who wished to vote “no” had to publicly disagree with the strongly stated views of the Operations Manager. The letter failed to point out that the 2013 Agreement unlike the 2005 Agreement and the Award and the NES are not enforceable under the Fair Work Act and that there is no enforceable guarantee that the 2013 Agreement will continue or be implemented.

Of course if there was an application for the Fair Work Commission to approve the 2013 Agreement there would not be any issue but this does not appear to be the intention of the Applicant in this matter.

Subject to considering any further or alternative submission which may be made the Commissioner proposes the following course of action. Mr Craig should write by email to each employee who is covered by the 2005 Agreement advising that:

“The Fair Work Commission has raised two concerns about the vote to terminate the 2005 Agreement:

• Firstly, the Commissioner is concerned that because the letter asking staff to vote stated that the Operations Manager believed that employees should vote in favour of the termination of the 2005 Agreement and the vote was by email to the Operations Manager there may have been unreasonable pressure on employees to cast a positive vote.



• Secondly, the Commissioner is concerned that the letter asking staff to vote failed to point out that because the 2013 Agreement is not an approved agreement under the Fair Work Act it is not able to enforced under the Fair Work Act. As a result there is no enforceable guarantee that the Agreement will continue or will be implemented. The employer has made a good faith commitment to observe the 2013 Agreement. If the 2005 Agreement is terminated the enforceable minimum terms and conditions of employment are those contained in the Award and the NES.




If you have any concern about the termination of the 2005 Agreement the Commissioner has requested that you please email the Commissioner at the following email address: [email protected]. The Commissioner has advised that your name will be kept confidential.  Any email must be received within 7 working days of the date of this email. Please put Rail Plus Australia Pty Ltd Certified Agreement 2005 in the subject line.

In the event that the Commissioner does not receive any expression of concern he has advised that he intends, subject to consideration of any further submission, to approve the termination of the 2005 Agreement. In the event that the Commissioner does receive expressions of concern a hearing will be held in January 2014 to finalise the matter.”

[8] Mr Craig sent the proposed email to all staff covered by the Agreement and forwarded Chambers a copy.

[9] I had not received any response from the affected employees and therefore on 7 January 2014 my Associate wrote to Mr Craig as follows:

“As we have not received any response from the employees and it is more than 7 working days since 17 December the matter can proceed to be finalised.

Can you please advise the affected employees by email that: “As no objection has been received from any affected employee in response to the email sent on 17 December 2013 the Commissioner intends to approve the termination of the Agreement on Thursday 9 January 2014, subject to considering any further submission which may be received prior to 2pm on Thursday 9 January 2014.””

[10] Mr Craig again sent the proposed email to all staff covered by the Agreement and forwarded Chambers a copy.

[11] I have not received any response from the affected employees. I therefore have no reason to believe that the employees have not agreed to the termination, and there are no employee organisations covered by the Agreement. I have had regard to all of the factors in s.223 of the Act and I am satisfied that all the requirements for the termination of an enterprise agreement after its nominal expiry date have been met.

[12] I approve the termination of the Agreement. Pursuant to s.224 of the Act the termination of the Agreement will operate from 9 January 2014.

COMMISSIONER

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